Citation Nr: 20032059 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 14-02 172 DATE: May 6, 2020 ORDER An initial compensable rating prior to October 5, 2012, and in excess of 10 percent from October 5, 2012, to June 6, 2017, for peripheral neuropathy of the right lower extremity (RLE) is denied. An initial compensable rating prior to October 5, 2012, and in excess of 10 percent from October 5, 2012, to June 6, 2017, for peripheral neuropathy of the left lower extremity (LLE) is denied. As of June 7, 2017, a 20 percent rating, but no higher, for peripheral neuropathy of the RLE is granted, subject to the laws and regulations governing the payment of monetary awards. As of June 7, 2017, a 20 percent rating, but no higher, for peripheral neuropathy of the LLE is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected diabetes mellitus type II, is remanded. FINDINGS OF FACT 1. For the appeal period prior to October 5, 2012, the Veteran’s RLE peripheral neuropathy is not manifested by mild incomplete paralysis of the right anterior crural (femoral) nerve. 2. For the appeal period prior to October 5, 2012, the Veteran’s LLE peripheral neuropathy is not manifested by mild incomplete paralysis of the left anterior crural (femoral) nerve. 3. For the appeal period from October 5, 2012 to June 6, 2017, the Veteran’s RLE peripheral neuropathy is manifested by no more than mild incomplete paralysis of the right anterior crural (femoral) nerve. 4. For the appeal period from October 5, 2012 to June 6, 2017, the Veteran’s LLE peripheral neuropathy is manifested by no more than mild incomplete paralysis of the left anterior crural (femoral) nerve. 5. Resolving all doubt in favor of the Veteran, as of June 7, 2017, but no earlier, his RLE peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the right anterior crural (femoral) nerve. 6. Resolving all doubt in favor of the Veteran, as of June 7, 2017, his LLE peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the left anterior crural (femoral) nerve. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to October 5, 2012, and in excess of 10 percent from October 5, 2012, to June 6, 2017, for peripheral neuropathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.123, 4.124a, Diagnostic Code (DC) 8626. 2. The criteria for an initial compensable rating prior to October 5, 2012, and in excess of 10 percent from October 5, 2012, to June 6, 2017, for peripheral neuropathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.123, 4.124a, DC 8626. 3. As of June 7, 2017, the criteria for a 20 percent rating, but no higher, for peripheral neuropathy of the RLE have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.123, 4.124a, DC 8626. 4. As of June 7, 2017, the criteria for a 20 percent rating, but no higher, for peripheral neuropathy of the LLE have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.123, 4.124a, DC 8626. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2013 and February 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Board remanded the claims on appeal, as well as claims for service connection for tinnitus, bilateral hearing loss, and diabetic neuropathy of the upper right and left extremities. While on remand, an April 2017 rating decision granted service connection for tinnitus and bilateral hearing loss and a January 2019 rating decision granted service connection for diabetic peripheral neuropathy of the upper right and left extremities. As such represents a full grant of the benefits sought with respect to such issues, they are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Additionally, the Board notes that the Veteran has perfected an appeal as to the issues of entitlement to increased ratings for sciatic neuropathy of the right and left lower extremities, and entitlement to earlier effective dates for sciatic neuropathy of the right and left lower extremities and peripheral neuropathy of the right and left upper extremities. However, as such issues have not been docketed, they will be the subject of a subsequent Board decision, if otherwise in order. Finally, the Board notes that, since the issuance of the supplemental statement of the case in January 2019, additional evidence, including a January 2019 peripheral neuropathy VA examination was received. However, the Veteran waived AOJ consideration of such evidence in October 2019. Therefore, the Board may properly consider the entirety of the evidence of record. 38 C.F.R. § 20.1304(c). 1. Entitlement to an initial compensable rating prior to October 5, 2012, and in excess of 10 percent thereafter for peripheral neuropathy of the RLE. 2. Entitlement to an initial compensable rating prior to October 5, 2012, and in excess of 10 percent thereafter for peripheral neuropathy of the LLE. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on December 15, 2002, the effective date of service connection for peripheral neuropathy of the RLE and LLE. The Veteran is seeking increased ratings for his bilateral lower extremity (BLE) peripheral neuropathy as he contends such disabilities are more severe than as reflected by the currently assigned ratings. A disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. In this regard, the Veteran’s peripheral neuropathy of the RLE and LLE are rated under DC 862 pertinent to neuritis affecting the anterior crural nerve (femoral). In this regard, neuritis, cranial or peripheral, characterized by loss of relexes, muscle atrophy, sensory disturbances, and constant pain, at times excrurciating, is to be rated on the scale provided for injury of the nerve involved, with a maxium equal to severe incomplete paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for, as relevant, moderate incomplete paralysis. 38 C.F.R. § 4.123. DC 8626 provides that incomplete paralysis of the femoral nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 30 percent rating when severe. Complete paralysis of the femoral nerve, described as paralysis of quadriceps extensor muscles, warrants a 40 percent rating. Based upon review of the evidence, the Board finds that prior to October 5, 2012, an initial compensable rating is not warranted, and from October 5, 2012 to June 6, 2017, a rating in excess of 10 percent is not warranted, for RLE and LLE peripheral neuropathy. However as of June 7, 2017, the Veteran is entitled to 20 percent ratings, but no higher, for RLE and LLE peripheral neuropathy. In this regard, in June 2003 and October 2003, the Veteran reported no sensations of burning, tingling, or numbness in his feet. Additionally, in November 2003, he was able to feel Weinstein monofilament testing on all 10 toes and on the dorsum and plantar aspects of both feet. He was also able to feel vibration on the metatarsal joints of all 10 toes and had normal reflex testing of his knee and ankle jerks. In March 2005, a clinician noted that the Veteran did not have significant muscle aches and pains, and had normal sensation to monofilament testing of his lower extremities. Furthermore, upon physical examination in January 2008, the Veteran had range of motion without difficulty of his extremities and there was no numbness or tingling. In an April 2010 VA treatment record, the clinician noted that the Veteran had full range of motion of all extremities, normal muscle size, tone, and strength, and symmetrical reflexes. In a December 2010 VA treatment record, the Veteran reported no sensations of burning, tingling, or numbness in his feet, and vibratory sensations were intact for his feet. Additionally, a February 2011 VA treatment record noted that the Veteran had normal muscle strength and tone, and his neurological examination was intact. However, in an October 5, 2012 statement, the date upon which increased ratings of 10 percent were assigned, the Veteran reported that his feet had become extra sensitive and he felt a sharp pain in response to only slight provocation, such as stepping on a small pebble with shoes on. A January 2013 clinician also noted that the Veteran had peripheral neuropathy with a severity level of mild and his symptoms included tingling. In February 2013, the Veteran was afforded a VA examination. At such time, he reported he had continuous burning on the soles of both feet and his toes had less feeling. His symptoms included mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in his BLE. He had normal muscle strength of his bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion. His deep tendon reflexes were normal, and he had only decreased sensation in his feet/toes. The examiner found that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the femoral nerves (anterior crural). Subsequent treatment records also show that in January 2014 and April 2014, the Veteran had normal muscle strength and tone, and his neurological examination was intact with decreased sensation only in both feet. In January 2015, the Veteran underwent another VA examination for his peripheral neuropathy. At such time, he reported that he started having problems with numbness and tingling in his feet about one and a half to two year ago. He also stated that he had difficulty feeling surfaces when he walked and had decreased sensation in his feet. His symptoms included mild paresthesias and/or dysesthesias and numbness of his BLE. He had normal muscle strength of his bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion. His deep tendon reflexes were normal, and he had decreased sensation only in his feet/toes. The examiner found that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the sciatic nerve. However, the severity of the femoral nerves (anterior crural) was not determined. In August 2016, a peripheral neuropathy disability benefits questionnaire (DBQ) was received from Dr. M.Z. She noted that the Veteran had moderate paresthesias and/or dysesthesias and numbness of his BLE as well as leg pain and numbness. However, she did not test the Veteran’s muscle strength, reflexes, or sensation of his BLE. She also did not determine the severity of his neuropathy affecting the femoral nerves. In February 2017, the Veteran was afforded another peripheral neuropathy VA examination. At such time, he reported that he had increased sensitivity on the bottom of both feet and, due to the abnormal sensations in his feet, he was having difficulty with walking on uneven or irregular surfaces. The examiner noted that the Veteran’s symptoms included mild paresthesias and/or dysesthesias of the BLE and increased sensitivity on the bottom of both feet. He had normal muscle strength of his bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion. His deep tendon reflexes were normal, and he had decreased sensation only in his feet/toes. The examiner found that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the sciatic nerve; however, he found that there was no impairment of the Veteran’s femoral nerves. Nonetheless, shortly thereafter on June 7, 2017, the Veteran underwent another peripheral neuropathy VA examination. At such time, the examiner noted that the Veteran’s condition was progressively increasing the numbness of both legs. His symptoms included mild intermittent pain, paresthesias and/or dysesthesias, and numbness of his BLE. He had normal muscle strength of his bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion. His bilateral knee deep tendon reflexes were normal, but his bilateral ankle reflexes were decreased. He had decreased sensation in his feet/toes and ankles/lower legs, but his bilateral knee/thigh sensation was normal. The examiner found that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the femoral nerves. However, he also noted that the Veteran’s lower extremity sensory neuropathy, which included both such affecting both the sciatic and femoral nerves, was moderate in nature. The Board notes that private treatment records from Regional West Physicians Clinic characterized the Veteran’s neuropathy from mild to severe for the period from 2013 to 2018. However, such characterizations were inconsistent and did not last for long periods of time. Specifically, on January 13, 2015, the clinician noted that the Veteran’s neuropathy was moderate; however, on January 27, 2015, two weeks later, such was noted to be mild. Additionally, in March 2015 and August 2015, the clinician noted that the Veteran’s foot pain appeared to be related to his back problems rather than his diabetic neuropathy. Moreover, in February 2017, the clinician indicated that the Veteran’s neuropathy was severe, but he had normal sensory and motor tests. A month later in March 2017, his neuropathy was noted to be moderate with normal motor and sensory tests. Additionally, in March 2018, the Veteran’s review of symptoms revealed no burning, weakness, or numbness of his extremities, and he had normal sensory and motor tests. In June 2018, another peripheral neuropathy DBQ was received from the Veteran. However, such DBQ was completed by him as he noted his physician would not do paperwork anymore. He reported that he had severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of his BLE. The Veteran also filled out the neurologic examination portion of the DBQ, but there is no indication that the proper medical testing was used in determining his muscle strength, deep tendon reflexes, and sensation of his BLE. Thus, it is afforded no probative weight. Additionally, the severity of his peripheral neuropathy affecting his femoral nerves was not noted. Nonetheless, in January 2019, the Veteran underwent another peripheral neuropathy VA examination. At such time, he reported that his neuropathy had worsened since his last VA examination. His symptoms included mild constant pain, paresthesias and/or dysesthesias, and numbness of his BLE, and moderate intermittent pain of his BLE. He had normal muscle strength and deep tendon reflexes tests. The Veteran also had decreased sensation in his bilateral knee/thigh, ankle/lower leg, and foot/toes. The examiner found that the Veteran’s BLE neuropathy resulted in moderate incomplete paralysis of the femoral nerves. Prior to October 5, 2012, the Board finds that the Veteran’s RLE and LLE peripheral neuropathy of the femoral nerves did not warrant initial compensable ratings. Specifically, the record does not show that such disabilities were manifested by mild incomplete paralysis of the femoral nerves. In this regard, the Veteran reported subjective symptoms, to include sensations of burning, tingling, or numbness, and objective examinations were normal, to include monofilament testing, muscle strength, and tone of the BLE. From October 5, 2012, to June 6, 2017, the Board finds that the Veteran’s RLE and LLE neuropathy of the femoral nerves did not warrant ratings in excess of 10 percent as the record does not show such disabilities were manifested by more than mild incomplete paralysis of the femoral nerves. Specifically, the February 2013 VA examiner found that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the femoral nerves. Additionally, while Dr. M.Z. noted that the Veteran had moderate paresthesias and/or dysesthesias, and numbness, she did not characterize the severity of his peripheral neuropathy of the femoral nerves or test his muscle strength, reflexes, or sensation of his BLE. Furthermore, at the February 2017 VA examination, the Veteran’s only symptoms included mild paresthesias and/or dysesthesias of the BLE, which resulted in the examiner’s determination that his peripheral neuropathy did not affect the femoral nerves, and he had normal muscle strength tests throughout such appeal period. However, after resolving all doubt in favor of the Veteran, the Board finds that as of June 7, 2017, the Veteran’s RLE and LLE peripheral neuropathy affecting the femoral nerves warrants 20 percent ratings. In this regard, while the June 7, 2017 VA examiner determined that the Veteran’s BLE neuropathy resulted in mild incomplete paralysis of the femoral nerve, he also noted that the overall severity of the Veteran’s lower extremity sensory neuropathy affecting the sciatic and femoral nerves was moderate. While the Veteran indicated that he had severe symptoms related to his BLE peripheral neuropathy in his June 2018 DBQ, such was completed by him and no contemporaneous objective neurological examination was performed. Additionally, the January 2019 VA examiner characterized the Veteran’s BLE peripheral neuropathy as resulting in moderate incomplete paralysis of the femoral nerves, which is consistent with his report of moderate intermittent pain of his BLE. However, as the Veteran’s BLE peripheral neuropathy resulted in only subjective symptoms with decreased sensation in the feet/toes and ankles/lower legs and reduced bilateral ankle reflexes on a single occasion, without weakened muscle strength or abnormal deep tendon reflexes on multiple other examinations, the Board finds that such disability does not more nearly approximate severe incomplete paralysis of the femoral nerves. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his BLE peripheral neuropathy affecting the femoral nerves is more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected BLE peripheral neuropathy affecting the femoral nerves; however, the evidence indicates the severity of such disability has remained stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim addressed herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board finds that initial compensable ratings prior to October 5, 2012, and in excess of 10 percent from October 5, 2012, to June 6, 2017, for peripheral neuropathy of the RLE and LLE affecting the femoral nerves are not warranted. However, as of June 7, 2017, ratings of 20 percent, but no higher, for such disabilities are warranted. To the extent that the Board denied any aspect of the Veteran’s claims, the preponderance of the evidence is against the assignment of increased ratings. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and his claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected diabetes mellitus type II. Pursuant to the December 2016 remand, the Veteran was afforded a VA examination in February 2017 to determine nature and etiology of his claimed acquired psychiatric disorder. At such time, the examiner determined that the Veteran’s symptoms did not meet the diagnostic criteria for posttraumatic stress disorder (PTSD) and he did not otherwise have a mental disorder that conformed with the DSM-5 criteria. He noted that the Veteran’s reported stressors were seeing caskets being transported back to the United States while he was stationed in the Philippines and learning of the death of his friend, who enlisted with him and had died in Vietnam. However, he opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, the examiner reasoned that the Veteran did not report symptoms sufficient for a diagnosis of PTSD, a depressive disorder, or an anxiety disorder as he described himself as “happy go lucky,” had an active life and good relationships with everyone he talked about, and was content with how God was treating him. Nonetheless, the Veteran was afforded another VA examination in January 2018, at which time the examiner found that he did not meet the criteria for a diagnosis of PTSD, but diagnosed unspecified depressive disorder. She also noted that the Veteran sought medical help for his diabetes and back disability, and stated that physical problems can negatively affect mood. However, in February 2018, the examiner opined that it was less likely than not that the Veteran’s unspecified depressive disorder was caused or aggravated beyond its natural progression by his service-connected diabetes mellitus type II as such became a significant problem only after his wife became ill and died. In October 2018, an addendum opinion was obtained from the February 2017 VA examiner. At such time, he opined that it was less likely than not that any non-PTSD psychiatric disorder, to include depression and anxiety disorder, was related to the Veteran’s military service. In support thereof, the examiner explained that the Veteran’s entrance and separation examinations were free of any mental health problems. He also indicated that he found that the Veteran did not have mental health symptoms that would meet the criteria for any mental health disorder at the February 2017 VA examination. With regard to the January 2018 VA examination, he noted that only the Veteran’s subjective distress at the time of the examination resulted in the diagnosis of unspecified depressive disorder. The examiner further found that, if the Veteran had a mood disorder, it could not be connected to his service. In this regard, the examiner reasoned that there was 3 decades between the Veteran’s separation from service and the first documented evidence of the existence of mental health symptoms, which was inconsistent with any disorder that could have any nexus to his service. He further explained that, while the Veteran had received some mental health diagnoses from his treating clinicians in the past, such was common as there was often insufficient time available to thoroughly interview the patient. In this regard, the examiner indicated that mental health clinicians were not primarily focused on producing accurate diagnoses, but were instead more focused on treating the Veteran’s claimed symptoms. He further reasoned that the Veteran’s own testimony was not judged to be reliable as he reported a variety of diverse and inconsistent symptoms to VA clinicians that resulted in non-specific diagnostic labels. Therefore, while the Board finds that the foregoing opinions adequately addressed whether the Veteran’s claimed acquired psychiatric disorder is related to his military service, an addendum opinion is necessary to determine whether such is caused or aggravated by his diabetes mellitus type II. In this regard, while the January 2018/February 2018 VA examiner found that the Veteran’s unspecified depressive disorder was not caused or aggravated by such disability based on the fact that such became a significant problem following his wife’s illness and death, she did not address the impact of the Veteran’s diabetes on such disorder, which is especially problematic in light of the fact that she noted that physical problems can negatively affect mood. Thus, an addendum opinion regarding such matter should be obtained on remand. The matter is REMANDED for the following action: Return the record to the January 2018/February 2018 VA examiner, or another appropriate medical professional if she is unavailable, to render an addendum opinion addressing the etiology of the Veteran’s acquired psychiatric disorder. The record and a copy of this Remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should offer an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder, is caused by or aggravated by his service-connected diabetes mellitus type II? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should specifically address the impact, if any, of the Veteran’s service-connected diabetes mellitus type II (and associated complications) on his acquired psychiatric disorder, in light of the notation at the January 2018 VA examination that acknowledges such diagnosis and indicates that physical problems can negatively affect mood. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.